Cuomo’s Push To Ban Fusion Voting Could Violate State Constitution
Last week, the New York State Public Campaign Financing Commission held its first meeting. The commission has what should be a relatively straightforward task: making recommendations for a statewide system of publicly financed elections, similar to what already has been implemented for New York City campaigns.
But the commission, created in the state budget after legislative leaders couldn’t agree on the specifics of a system for taxpayer-funded campaigns, is also deciding whether to end fusion voting in New York. The ability to run on multiple ballot lines at once has empowered third parties on the left and the right, particularly the Working Families Party and the Conservative Party, to leverage their endorsements into greater electoral influence than they could have otherwise.
Both have filed lawsuits against the commission, arguing that any attempt to end fusion voting violates New York State’s labyrinthine constitution. And based on court rulings dating back over a century, they may have a point.
“It’s unconstitutional because the Court of Appeals has repeatedly and unequivocally said it’s unconstitutional,” said Richard Brodsky, a lawyer for WFP and a former state assemblymember. “As a lawyer, I’m fortunate in not having to say, ‘Your honor, it is my opinion this is unconstitutional.’ I am able to say the Court of Appeals has explicitly ruled the right to fusion cannot be overturned or infringed upon.”
No state Supreme Court judge, insisted Brodsky, “can shrug off three Court of Appeals decisions and say, ‘I don’t care.’”
The lawsuit rests on three cases decided by the Court of Appeals, the state’s highest court, in 1910, 1911, and 1973. Especially notable is the 1911 case, a repudiation of the so-called “Levy Election Law” passed that same year. The law, adopted by the state legislature to outlaw fusion voting in New York, came after a wave of similar bans in other states like Michigan, Ohio, and Wisconsin. At the time, populist left-wing third parties were ascendant, and Democratic political machines sought to curtail their influence by disallowing them from running on mainstream party lines in addition to their own.
Tammany Hall, the dominant Democratic machine in New York, similarly wanted to cripple third parties. Opponents of the Levy Law, however, argued that ending fusion amounted to voter discrimination and successfully swayed the Court of Appeals.
“With great deference to the learned court from which we have quoted, in our opinion the constitution … does guarantee that each voter shall have the same facilities as any other voter in expressing his will at the ballot box so far as practicable,” the court wrote in its decision. “Any other principle, in our judgment, would be destructive of fair elections.”
The most recent case, Devane v. Touhey in 1973, upheld the right to fusion voting after candidates for various offices in Albany County had their petitions invalidated by county officials over appearing on multiple ballot lines. The Court of Appeals called the local statute unconstitutional as a “denial of equal protection.”
Only about eight states in America allow fusion voting. While New York‘s courts may have safeguarded fusion, federal courts specifically have not, said Richard Briffault, the Joseph P. Chamberlain professor of legislation at Columbia Law School. Briffault cited a 1997 Supreme Court case, Timmons v. Twin Cities Area New Party, that affirmed a Minnesota law barring candidates of one party from appearing on the ballot of another.
“The U.S. Supreme Court said it was not unconstitutional and the state has the authority to require parties to be separate from each other,” Briffault said. “Barring fusion voting would not be unconstitutional under the U.S. Constitution.”
Asked about WFP’s lawsuit, a spokesperson for the Public Financing Commission did not return a request for comment. Neither did James McGuire, the attorney representing the commission in the lawsuit. McGuire, a counsel to former Republican Governor George Pataki, is defending the commission in court after Attorney General Letitia James, who has been cross-endorsed by the Working Families Party in the past and was first elected to the New York city council as a WFP candidate, declined to represent the state in litigation. The AG’s office determined it was inappropriate, in this instance, to represent the commission, but would not divulge to Gothamist exactly why.
Case law does not prevent the state legislature from changing the constitution, if it so wishes, but that task is far more arduous. First, two newly-elected sessions of the legislature must pass an amendment. Then, it goes before the voters statewide.
Any legislative action to end fusion voting is highly unlikely, since most leading Democrats, allied with the Working Families Party, support keeping it in place. A letter defending fusion was signed by a large number of Democratic state senators. High-profile Democrats like Congressmember Alexandria Ocasio-Cortez and presidential candidates Elizabeth Warren and Bernie Sanders have affirmed their support for fusion. Fusion also polls fairly well statewide, with more registered voters in favor of it than opposed.
The notable exception is Governor Andrew Cuomo, who has warred with the WFP since his first term. Though he ran on their ballot line in 2014 and 2018, Cuomo has long resented a party in the state willing to oppose him from the left. In 2018, WFP unsuccessfully backed Cynthia Nixon in a primary before endorsing Cuomo in the general election.
The commission, made up of nine members appointed by Cuomo and Democratic and Republican legislative leaders, was jointly created by the governor, Senate Majority Leader Andrea Stewart-Cousins, and Assembly Speaker Carl Heastie in April after the failure of budget talks to arrive at a campaign finance reform plan. In July, Cuomo appointed Jay Jacobs, the chair of the New York State Democratic Party and a close ally, to the commission. Jacobs is a longtime critic of fusion voting, blaming it for elevating conservative Republicans in the suburbs. At the meeting last week, he was a prime backer of a resolution that will mandate that the commission pass any changes to New York’s election law as a single package. In such a scenario, dreaded by proponents of fusion, commissioners could see their only opportunity to create a system of public financing, favored by progressives and good government groups, tied to the death of fusion voting in New York.
“We think a public financing system is barely impacted by fusion voting,” said Alex Camarda of Reinvent Albany, a good government group that supports public matching funds for campaigns. “The commission should be focused on designing a strong public financing system that will amplify the voice of everyday New Yorkers.”
Once the commission approves a package of proposals, according to Camarda, it goes into effect December 20, unless the legislature specifically votes to overrule it.
It’s still unclear exactly why fusion voting and public finance have been bound together, since the ability to run on multiple ballot lines at once has little to do with awarding public money to candidates who meet certain small donor thresholds. When asked how fusion ended up being considered by the public financing commission at all and if the governor’s office feels the two issues should be linked, Rich Azzopardi, a Cuomo spokesperson, pointed Gothamist to public comments Cuomo made in April about the matter.
“Fusion voting, I think the New York Times is against it, I think Newsday is against it, I think the Daily News may be against it,” Cuomo said after the passage of the state budget. (While the Times and Newsday have editorialized against cross-endorsement, the Daily News actually wants to retain it.) “But that’s a question for the commission because it’s no longer just a theoretical question, it’s a financial and a practical question. You know, if you have six parties, or however many we now have, if you have six parties, pick a number, eight candidates on every party line running, that’s 42 candidates per race. A lot of candidates.”
(Azzopardi did not reply to queries about how requiring each party to choose its own candidate would reduce the number of candidates running.)
Ending fusion voting could cost New York taxpayers more money under a system of public matching funds, however. For the WFP and Conservative Party, who both thrive on cross-endorsing Democratic and Republican candidates, a world without fusion would mean fielding their own candidates independent of the major parties. Third-party candidacies, in such a scenario, could secure additional matching funds, contradicting Cuomo’s concern that fusion voting would be more expensive for the state.
Azzopardi was less unequivocal about the governor’s opinion on the lawsuit brought against the public financing commission, though he declined to weigh in on the merits of whether fusion is constitutional. He attacked WFP’s state director, Bill Lipton, by name.
“It’s a craven attempt by Bill Lipton and his new best friends the Trump Lovin’ Conservatives to protect their power,” Azzopardi said of the parallel lawsuits by the WFP and Conservative Party. (Lipton did not respond to the charges by publication time.)